“KNOW YOUR RIGHTS”

1. “KNOW YOUR RIGHTS” Legal Rights of Californians with Alcohol and Drug Histories and Criminal Records

2. This training is about . . . • Laws prohibiting discrimination against people with disabilities in: ►Employment ►Housing ►Public accommodations – health care, schools, etc. ►Government benefits and services • Laws prohibiting discrimination based on a criminal record

3. Introduction: What Is Discrimination? Part 1

4. DISCRIMINATION IS . . . treating a person less favorably/differently because of his/her STATUS . . . when the law does not permit it. ---Plenty of discrimination may be distasteful to you, but is not necessarily illegal We’re talking about what is illegal, not what is immoral

5. DISCRIMINATION IS . . . Examples of status protected by law: • Race • Age • Disability • Gender

6. DISCRIMINATION: Examples • Doctor’s office won’t treat someone with a drug problem. • Employer fires someone because that person is in recovery from alcoholism. • Employer has a policy: we don’t hire anyone with a criminal record, no matter what it was for or how old it is.

7. DISCRIMINATION: CASE-BY-CASE DECISION • Should look at each person individually. • Should not make generalizations about a person based on status (e.g., based on the mere fact that the person has a disability or has a criminal record).

8. DISCRIMINATION IS NOT . . . treating a person less favorably/differently because of his/her CONDUCT.

9. It’s not discrimination to . . . • Fire a person who causes an accident at work because she is under the influence of alcohol or drugs. • Evict a tenant who has been found guilty of selling drugs out of his apartment.

10. Part 2 Which Laws Prohibit Discrimination Against People with Alcohol/Drug Histories?

11. THE LAWS – DISABILITY DISCRIMINATION FEDERAL LAWS • Americans with Disabilities Act – “ADA” (42 U.S.C. §12101 et seq.) • Rehabilitation Act of 1973 – “Rehab Act” (29 U.S.C. §§701-794) and…

12. THE LAWS – DISABILITY DISCRIMINATION FEDERAL LAWS (cont.) • Fair Housing Act – “FHA” • Workforce Investment Act – “WIA” • Family and Medical Leave Act – “FMLA”

13. FEDERAL LAWS WHO IS PROTECTED BY THESE LAWS?

14. FEDERAL LAWS (cont.): WHO IS PROTECTED? • a person with a “DISABILITY” • a person with a history (“record”) of a disability • a person regarded as having a disability

15. FEDERAL LAWS (cont.): WHO IS PROTECTED (cont.)? What is a “disability”? • “a physical or mental impairment that substantially limits one or more major life activities” • (In California it does not have to be “substantial”) • a history (“record of”) such an impairment or • being “regarded as” having such an impairment

16. FEDERAL LAWS (cont.): WHO IS PROTECTED (cont.)? What is a “disability”? (cont.) • Must make an individualized determination. There are no automatic disabilities. • A person has a “disability” only if she or he has an impairment that affects her or his major life activities, such as caring for self, walking, talking, or working.

17. FEDERAL LAWS (cont.): WHO IS PROTECTED (cont.)? Is alcoholism a “disability”? • past alcohol abuse/alcoholism: often YES • current alcohol abuse/alcoholism: maybe The answer depends on whether the alcohol abuse/alcoholism substantially impairs or impaired that person’s major life activities.

18. FEDERAL LAWS (cont.): WHO IS PROTECTED (cont.)? Is drug addiction a “disability”? • past addiction: YES, if it substantially impaired that person’s major life activities. This includes people who: • have successfully completed treatment • are currently in treatment (including MAT) • have achieved recovery without treatment

19. FEDERAL LAWS (cont.): WHO IS PROTECTED (cont.)? Is drug addiction a “disability”? (cont.) • current illegal use of drugs: NO Federal laws do not protect individuals who are “currently engaging in the illegal use of drugs.”

20. FEDERAL LAWS (cont.): WHO IS PROTECTED (cont.)? What does current illegal use of drugs mean? “Illegal use” includes: • Use of Illegal drugs (e.g., heroin, cocaine) • Unlawful use of prescription drugs: • no prescription • fraudulent prescription • misuse of prescription medications

21. FEDERAL LAWS (cont.): WHO IS PROTECTED (cont.)? When is illegal use of drugs “current”? No definition in the law itself. Question is: is the use recent enough so that it is reasonable to assume that it is an ongoing problem? Courts often consider person who has illegally used drugs in past few months to be a “current” user, and therefore not protected by the law.

22. FEDERAL LAWS (cont.): WHO IS PROTECTED (cont.)? BUT people who currently use drugs illegally are protected from discrimination by health care providers if “otherwise entitled” to such services. Examples: • Cannot be denied surgery just because illegal drug user. • Cannot be denied dental care just because use cocaine.

23. FEDERAL LAWS (cont.)WHO MUST FOLLOW THESE LAWS? TO WHOM DO THESE LAWS APPLY?

24. FEDERAL LAWS (cont.)WHO MUST FOLLOW THESE LAWS? Who must follow the Rehabilitation Act? • federal government • groups/agencies/programs that receive federal funding, either directly or indirectly

25. FEDERAL LAWS (cont.)WHO MUST FOLLOW THESE LAWS? Who must follow the ADA? ● private employers with 15 or more employees. They are covered by “Title I” of the ADA. • state and local government agencies. They are covered by “Title II” of the ADA. • places of “public accommodation,” which are private entities open to the public (e.g. hospitals, doctors’ offices, day care, hotels). They are covered by “Title III” of the ADA.

26. FEDERAL LAWS (cont.)WHO MUST FOLLOW THESE LAWS? Who must follow the Fair Housing Act? ● most housing providers (landlords), whether private or public • others who sell or rent housing (brokers)

27. FEDERAL LAWS (cont.)WHO MUST FOLLOW THESE LAWS? Example – John John used to be dependent on heroin but is now in methadone maintenance treatment. Landlord: “no addicts or people on methadone can apply for my apartments.” Is John protected by federal laws?

28. FEDERAL LAWS (cont.)WHO MUST FOLLOW THESE LAWS? ANSWER – John YES, John is protected by federal law. . . . . But what if he just stopped using heroin last month? Does this matter?

29. FEDERAL LAWS (cont.)WHO MUST FOLLOW THESE LAWS? ANSWER – John (cont.) YES, it may matter. If John stopped using heroin within the last month, he may be treated as a person “currently engaging in the illegal use of drugs” and may NOT be protected under federal law.

30. FEDERAL LAWS (cont.)WHO MUST FOLLOW THESE LAWS? Example – Julie Julie uses cocaine after work, but has no problems on the job. Her boss finds out about her cocaine use and fires her. Is Julie protected by federal laws?

31. FEDERAL LAWS (cont.)WHO MUST FOLLOW THESE LAWS? ANSWER – Julie NO, Julie is not protected by federal law because she is “currently engaging in the illegal use of drugs.” This is true even if she has no problems with her work.

32. FEDERAL LAWS (cont.)WHO MUST FOLLOW THESE LAWS? Example – Jose Jose has an alcohol problem, but has no problems on the job. After his boss hears that he is attending alcoholism outpatient treatment at night, his boss fires him, saying: “I don’t want any alcoholics working here.” Is Jose protected by federal laws?

33. FEDERAL LAWS (cont.)WHO MUST FOLLOW THESE LAWS? ANSWER – Jose Yes. Individuals with current alcohol problems may have a “disability” and be protected from discrimination – unlike individuals who currently engage in the illegal use of drugs.

34. In California Additional layer of protection! California Fair Employment & Housing Act (FEHA) Unruh Civil Rights Act (“Unruh”) Ralph Civil Rights Act California Family Rights Act

35. California (cont.) WHO MUST FOLLOW THIS LAW? ● [public and private employers] ● [public accommodations] ● [housing providers]

36. Part 3 What RIGHTS Do These Laws Give People With Past or Current Alcohol/Drug Problems?

37. What rights do these laws give? EMPLOYMENT

38. What rights do these laws give?EMPLOYMENT The basics: • Can’t deny person a job or fire person just because s/he is in treatment or recovery. • Must provide “reasonable accommodation” for the individual with a disability. • Must keep health information confidential. • Limits on questions about disabilities.

39. What rights do these laws give?EMPLOYMENT No employer may discriminate against a “qualified individual with a disability.”

40. What rights do these laws give?EMPLOYMENT (cont.) What does “qualified” mean? • Meets qualification standards for job • Able to perform essential job duties with or without “reasonable accommodation.” (See next slide.)

41. What rights do these laws give?EMPLOYMENT (cont.) What is a“reasonable accommodation”?

42. What rights do these laws give?EMPLOYMENT (cont.) Answer: • Change(s) to work setting, hours or workplace rules made so that a person with a disability can perform job duties • Mustnot cause employer “undue hardship” – e.g., significant cost, need for fundamental change to way company operates

43. What rights do these laws give?EMPLOYMENT (cont.) Answer (cont.): • Individual with a disability must request the reasonable accommodation unless employer is aware of the disability and the need for an accommodation.

44. What rights do these laws give?EMPLOYMENT (cont.) Answer (cont.): • Employer and employee should engage in “interactive process,” where employer may – • Require reasonable documentation of disability and the need for an accommodation • Suggest a different accommodation than the one employee wants, if effective.

45. What rights do these laws give?EMPLOYMENT (cont.) Answer (cont.): • Employer must maintain the confidentiality of health information – including alcohol & drug treatment information.

46. What rights do these laws give?EMPLOYMENT (cont.) Examples of reasonable accommodations: • permitting employee in recovery to move from day shift to night shift so employee can attend day-time treatment

47. What rights do these laws give?EMPLOYMENT (cont.) More reasonable accommodations: • Allowing leave of absence for alcoholism treatment – especially if employer permits leave for individuals with other disabilities • Change in job duties, if necessary to enable employee to perform essential job duties

48. What rights do these laws give?EMPLOYMENT (cont.) Employer has right to monitor recovery: Example: • require “fitness for duty” evaluation • request documentation from treatment provider

49. What rights do these laws give?EMPLOYMENT (cont.) Example – Paula Paula, who has been in recovery for three years, is a cashier at a 24-hour parking garage in the city. She attends a group counseling session for people who want support to stay in recovery, which meets from 4:00 to 6:00 p.m. once a week. Before January 1st, the garage changed her to the afternoon shift, so she would have to work from noon to 7:00 p.m. Paula has been with this group for over a year. She is comfortable with the participants and would like to continue attending the weekly session. Q1: Can Paula continue to attend her weekly group session?

50. What rights do these laws give?EMPLOYMENT (cont.) ANSWER – Paula A1. Yes, Paula can ask her employer for a reasonable accommodation to allow her to change her shift so she can attend the group counseling session. The employer may need to provide her an accommodation, but…